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The forgotten option to the Pulwama attack: The law on transnational terrorism

The Indian government, cross party, has shown little creativity in their legal tool kit. Despite Pakistan being named, again and again, as responsible for the attack, no official has been named in an investigation or prosecution, or proceeded against legally. Can the Indian government do so? Currently, with great difficulty, but it can add to its legal arsenal, and use the law to build a case against Pakistan. The law offers a peaceful, accountable and legitimate response to terrorism.

THE Pulwama attack of February 14, 2019 brings to the fore the paucity of legal responses (not the “non-military pre-emptive strike” carried out by Indian Air Force Mirage 2000 jets on February 26, 2019 in Balakot region of Khyber Pakhtunkhwa province of Pakistan) against transnational terrorism, particularly when, as in this case, as stated by the government’s intelligence dossiers, Pakistan is responsible for the terrorist attacks.

Beyond again asking for the United Nations to declare the head of Jaish-e-Mohammed — Masood Azhar Alvi — as a UN sanctions list designated terrorist, there has been little legal response to the terrorist attack, the Indian side, irrespective of the government, have shown little creativity in their legal tool kit. This move alone would have little impact as the US has already sanctions in place against Azhar, but depends of course on Pakistan to enforce those sanctions, and is locked in a strange abusive relationship with each other.

The Indian government, cross party, has shown little creativity in their legal tool kit. Despite Pakistan being named, again and again, as responsible for the attack, no official has been named in an investigation or prosecution, or proceeded against legally. Can the Indian government do so? Currently, with great difficulty, but it can add to its legal arsenal.

India can use the law to build a case against Pakistan. The law offers a peaceful, accountable and legitimate response to terrorism.

Although Jammu and Kashmir has been declared a “disturbed area” under the Armed Forces Special Powers Act, 1990 and the Disturbed Areas (Special Courts) Act, 1976, the Indian Government does not accept that Kashmir is an armed conflict for the purposes of international humanitarian law, or the law applicable to non-international armed conflicts. Outside the cease fire line where India and Pakistan are still at war, municipal law is applicable – the Ranbir Penal Code, Unlawful Activities Prevention Act, etc.

As such, an attack is a case of homicidal killing, as well as the aggravated offence of terrorism. An FIR should be lodged and those responsible for it, including those who conspired, planned, abetted, and acted in concert should be acted against. If Indian intelligence dossiers’ do indeed mention the role, active or passive, of Pakistani officials, then they should be named in the investigation, and the investigation should be taken to its logical end.

However, the legal options currently available with investigators and prosecutors, while sledgehammers domestically, are toothless internationally.

Although terrorism is a crime with an international dimension, it is not what is considered a core international crime. India’s attempts at including the offence of terrorism in the Rome Statute was not accepted, largely due to the inability of states to agree on the definition of terrorism, and although a review was planned, India removing itself from the process has left it without a role.

Similarly, a comprehensive treaty on terrorism remains stalled – surprising as all countries have declared themselves against terrorism. They just can’t seem to agree what is the offence of terrorism. An international crime, and an international or transnational criminal forum may be best to adjudicate the role of foreign state officials in fostering terrorism, but such a jurisdiction, and the underlying offence, has yet to be created.

Public international law offers some potential solutions.

Ukraine has taken Russia to the International Court of Justice for fostering terrorism, including shooting down of the Malaysian Airlines plane in Ukraine, hoping to rely on the Bosnia genocide case, to foster international liability on the Russian state, but the ICJ has yet to decide on the Russia’s jurisdictional objections.

Ukraine’s main grievance is with Russia’s alleged failure to legislate and/or implement its criminal law obligations under the anti-terrorism treaties properly, not only by failing to prevent or punish alleged perpetrators, but also by allegedly engaging in violations of prohibited conduct under the convention through its state agents or organs.

The Ukrainian argument is not without merit, as the Bosnian Genocide judgment held that where there is an obligation for a state to prevent, so far as within their power, commission of genocide by persons over whom they have a certain influence, it cannot be that they are not forbidden in international law to commit such acts through their own organs.

The only definition of terrorism in international law has come from the Special Tribunal for Lebanon, which was set up to prosecute the bombing that killed the then Prime Minister of Lebanon.

This tribunal, in a way, was a sui generis creation – an international tribunal to try a crime defined only in Lebanese law – but was a creation of international politics pushed by the French, and in particular President Chirac, with whom the assassinated Prime Minister and his son had close connections.

The Tribunal, not surprisingly, went further than Lebanese law to come up with terrorism as an offence in international law. Its definition relied not on treaties, but on opinio juris, with a dolus specialis intent “to spread fear among the population”, and required a transnational element.

Also binding, as it is based on Chapter VII of the UN Charter (allowing enforcement for global peace). In neither of these definitions, is there a national liberation / self-determination exception, which is incorporated into some agreements. Surprisingly, Pakistan has signed onto this definition of terrorism in the SAARD Convention on Suppression of Terrorism, although in 1997.

Instead, we are left with sectoral anti-terrorism treaties, such as the one on aviation, maritime, suppression of terrorist bombings, and the one on financial support, which has resulted in the Financial Action Task Force (FATF), on whose grey list Pakistan remains, without action on either side.

The treaties, and the quasi legislations by the United Nations General Council, impose on all countries aut dedere, aut judicare (to extradite, or prosecute). They do not, however, make terrorism an international crime.

This is what Pakistan, clearly acting out its legal responsibility, did in the case of the 1981 hijacking of an Indian Airlines plan by Sikh terrorists belonging to the Dal Khalsa. The hijackers faced trial in Pakistan, and were sentenced to life imprisonment. This response demonstrates the illegality of the Pakistan’s response to terrorism today.

If terrorism had been an international crime, then Pakistan would have had to demonstrate both the capacity and willingness to prosecute crimes of transnational terrorism where it had jurisdiction, or to submit to an international complementary jurisdiction. Although Pakistan likely still has the capacity, it seemingly lacks any willingness to prosecute crimes against terrorism.

India needs to presume that Pakistan will not, or is incapable of acting against its own agents or organs, as well as non-state actors, indulging in terrorist acts in India. The public international law option of the International Court of Justice remains, but it cannot forget about bringing justice to the victims of the terrorist bombings, including those in Pulwama. As such, it must look at innovations in international criminal law, as well as other countries, including but not limited to material support liability, superior responsibility, and joint criminal liability, and other forms of vicarious liability that will enable India to effectively prosecute armchair terrorists.

Superior responsibility, for instance, used by international ad hoc criminal tribunals, and now part of the Rome Statute, holds equally liable those superiors who have effective control over anyone, even if not formal, and knowledge of a crime, that they did not prevent or punish effectively.

Wilfully turning a blind eye to those who are under your de facto control is no longer an option. If you can punish someone, or prevent them from committing a crime, you are equally liable. Adopting such indirect forms of liability are essential.

Amendments in the Canadian Criminal Code, for instance, have armed the state with a wide array of indirect liability mechanisms, including participation, financing, facilitating, assisting, or even harbouring terrorists. Australia has extended liability, as has Singapore.

Instead, till date, there isn’t a single charge sheet against a Pakistani official, or a request for extradition against one, even though proof of such involvement has been presented diplomatically. None has been sought to be extradited. David Coleman Headley, one of the conspirators of the 26/11 attack continues to benefit from a plea deal in the US. We must act against those who allow such terrorist acts, both as a deterrent and as a duty to the victims.

Pakistan may not act on a potential red corner notice presented through Interpol for one of its officials, but a person subject to a terror warrant won’t be able to travel and may be subject to other international sanctions as well.

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